Citation Nr: 0401069
Decision Date: 01/13/04 Archive Date: 01/22/04
DOCKET NO. 02-05 158A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to an earlier effective date prior to September
11, 1995, for grant of an increased evaluation to 70 percent
for service-connected bipolar disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. Francesca Craft, Associate Counsel
REMAND
The veteran served on active duty from November 1949 to
February 1950 and from October 1955 to June 1956.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1996 rating decision by the
Department of Veterans Affairs (VA) regional office (RO) in
Los Angeles, California.
The President signed into law the Veterans Claims Assistance
Act of 2000 (VCAA) on November 9, 2000. See Pub. L. No. 106-
475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107 (West 2002). The new legislation provides
for, among other things, notice and assistance to claimants
under certain circumstances. The Court of Appeals for
Veterans Claims (formerly Court of Veterans Appeals) has held
that section 5103(a), as amended by the Veterans Claims
Assistance Act of 2000 (VCAA) and § 3.159(b), as recently
amended, require VA to inform a claimant of which evidence VA
will provide and which evidence claimant is to provide, and
remanding where VA failed to do so. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002); see also 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003). Review of the
file indicates that the veteran has not been informed of
either his own responsibilities or the VA's responsibility
under this new law. In this case, the RO's failure to issue
a development letter consistent with the notice requirements
of the VCAA amounts to a substantial oversight indicative of
minimal RO development and accordingly compels remand.
The Board observes that additional due process requirements
may be applied as a result of the enactment of the VCAA and
its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a).
Accordingly, to ensure that the VA has met its duty to assist
the claimant in developing the facts pertinent to the claim
and to ensure full compliance with due process requirements,
the case is REMANDED to the RO for the following development:
1. The appellant has the right to submit
additional evidence and argument on the
matter that the Board has remanded to the
RO. Kutscherousky v. West, 12 Vet.
App. 369 (1999).
2. The RO should furnish the appellant a
development letter consistent with the
notice requirements of the VCAA, as
clarified by Quartuccio, supra. See
also Paralyzed Veterans of America v.
Secretary of Veterans Affairs, 345 F.3d
1334 (Fed. Cir. 2003).
The RO should then conduct any necessary
development brought about by the
appellant's response to the VCAA letter
to include obtaining any medical records
not currently on file that are identified
pursuant to that letter.
3. After the completion of any
development deemed appropriate in
addition to that requested above, the RO
should readjudicate the issue of
entitlement to an earlier effective date
prior to September 11, 1995, for grant of
an increased evaluation from 50 to 70
percent for service-connected bipolar
disorder, currently evaluated as 70
percent disabling.
4. Thereafter, the RO should again
review the record. If the benefits
sought on appeal remain denied, the
appellant and his representative should
be furnished a supplemental statement of
the case, and given the opportunity to
respond thereto.
Thereafter, the case should be returned to the Board for
further appellate review, if otherwise in order. By this
remand, the Board intimates no opinion as to any final
outcome warranted. No action is required of the appellant
until he is notified by the RO.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
V. L. Jordan
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).